“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Saturday, March 7, 2015

UCLA Law Professor and ACLU Argue that Denying Trademark Protection to Redskins Violates First Amendment

I completely agree with UCLA Law School Prof. Eugene Volokh and the American Civil Liberties Unioin on this one. The First Amendment Freedom of Speech Clause does not and should not allow government officials to deny certain speech legal protection because those officials don't like the viewpoint expressed. From the Volokh Conspiracy blog republished by the Washington Post:

The Patent & Trademark Office held last year that the Redskins’ federal trademark must be canceled, because a federal statute bars registrations of marks that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” This doesn’t bar the Redskins from using their name, but it does reduce their ability to use trademark law to stop various infringing Redskins gear. I have tentatively argued that this exclusion of “disparag[ing]” trademarks violates the First Amendment:

My tentative view is that the general exclusion of marks that disparage persons, institutions, beliefs, or national symbols should be seen as unconstitutional. Trademark registration, I think, is a government benefit program open to a wide array of speakers with little quality judgment. Like other such programs (such as broadly available funding programs, tax exemptions, or access to government property), it should be seen as a form of “limited public forum,” in which the government may impose content-based limits but not viewpoint-based ones. An exclusion of marks that disparage groups while allowing marks that praise those groups strikes me as viewpoint discrimination. But I’m not sure that courts will ultimately see this my way; so far they haven’t been inclined to do so, precisely because the exclusion of a mark from federal registration leaves people entirely free to use the mark.

Few principles in constitutional law are as settled as the First Amendment’s prohibition on government regulation of private speech based on viewpoint. The courts have never blessed a government program that permits government actors to determine the acceptability of a speaker’s viewpoint and then condition benefits based on that determination. The First Amendment harms are magnified when such regulation of speech rests on vague and subjective terms that provide no meaningful notice to speakers as to which speech the government will find acceptable, and thereby risk — and in this case, ensure — inconsistent and discriminatory application.

These evergreen principles hold no less true simply because they arise in the context of trademark law. Yet Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), not only condones but mandates viewpoint-based discrimination in the provision of trademark registration. Section 2(a) prohibits the registration of any trademark interpreted by the U.S. Patent and Trademark Office (“PTO”) to be immoral, scandalous, or disparaging to any persons, institutions, beliefs, or national symbols. It is indisputable that registration of a mark provides substantial benefits to a trademark holder; it is also true that many trademarks involve expressive speech and association....

....Under the First Amendment, viewpoint-based regulation of private speech is never acceptable, regardless of the controversy of the viewpoint. The Lanham Act violates this bedrock principle by creating a formal system of government-provided benefits and then distributing those benefits based on a system of explicit viewpoint discrimination. It is simply not within the government’s authority to determine what speech is too “scandalous” to merit trademark protection. The Lanham Act’s determination of trademark propriety “is inconsistent with the maintenance of a robust and uninhibited marketplace of ideas” — especially so in the trademark context, where a literal marketplace allows members of the public to register protest through boycotts or other traditional First Amendment means.

By scheduling the cancellation of the Redskins’ trademark because the word expresses a disparaging viewpoint, the government violated the First Amendment. This Court should end this formal system of viewpoint discrimination by issuing a narrow ruling that strikes down those portions of Section 2(a) of the Lanham Act that prohibit registration of “immoral,” “scandalous,” or “disparag[ing]” marks.

To read the entirety of Prof. Volokh's column and the ACLU's position he quotes, click here.

Note: The Redskins' football helmet was added by this blog and was not part of the original article by Prof. Volokh.

1 comment:

Anonymous
said...

My husband and I spent two weeks in Alaska about 4 years during the winter season. We're not 'cruise people'. We picked up a rental SUV at the Anchorage Airport and drove. I still remember our chuckling about a local TV news report concerning a high school athletic team called the 'Halfbreeds'. Being curious people, we asked around among the local townspeople and learned that it was NOT offensive at all, only in the lower 48. Attached below is a link to a Washington Post article re: athletic team names in Alaska. http://juneauempire.com/stories/090605/spo_20050906001.shtml#.VPycE_nF-So

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.